Despite
asserted attempts to obtain the necessary financing and
business to continue its recreational vehicle operations, in
early June 2016, Evergreen RV set into motion the permanent
closure of its facilities located at 10758 County Road 2,
Middlebury, Indiana 46540 (“County Road
Facility”) and at 51700 Lovejoy Drive, Middlebury,
Indiana 46540 (“Lovejoy Drive Facility”) [DE 38].
After being employed as a regional sales manager out of the
County Road Facility since January 2011, Grimes was
terminated on June 8, 2016, without written notice.
Thereafter, he received a letter dated June 14th, purporting
to provide him “notice” under the WARN Act [DE 38
at 6]. The letter stated that the closure of the two
Evergreen RV facilities would be completed by June 24th and
would affect approximately 270 employees.

Grimes
is “eager and willing” to represent himself and
the other 270 Evergreen RV employees who were terminated
under the same circumstances in June 2016, which he alleges
was in violation of the WARN Act because Defendants failed to
provide sixty days' written notice of the plant closings
or mass layoffs. Grimes seeks, on behalf of himself and the
class, the respective wages and benefits allowed under the
WARN Act.

In
opposing class certification, Defendants contest whether KR
Enterprises or JMA can be held legally responsible for any
WARN Act violation under a “single employer”
theory. Having said that, Defendants have not contested that
approximately 270 Evergreen RV employees were terminated in
June 2016 when the facilities closed, nor do they argue that
the number of affected employees at each facility (or
“site”) would fail to meet the threshold number
required to invoke the WARN Act's notification
requirements. Rather, as detailed below, Defendants allege
some curable problems with respect to the proposed class
definition and notice. Defendants also take exception to
Grimes' ability to adequately represent the class and
satisfy the typicality requirement, because he worked
remotely from his home in North Carolina [DE 39-1] and was
purportedly insufficiently connected to either facility.

II.
ANALYSIS

Rule 23
of the Federal Rules of Civil Procedure governs the
certification of class actions in federal court. Wal-Mart
Stores, Inc. v. Dukes, 564 U.S. 338, 344 (2011). Rule
23(a) ensures that the named plaintiffs are appropriate
representatives of the class whose claims they wish to
litigate. Id. at 349. The Rule's four
requirements-numerosity, commonality, typicality, and
adequacy-effectively limit the class claims to those fairly
encompassed by the named plaintiff's claims. Id.
(citations and internal quotations omitted). If all of these
prerequisites are met, a court must also find that at least
one of the subsections of Rule 23(b) is satisfied.

In this
case, Grimes seeks class certification under Rule 23(b)(3).
Rule 23(b)(3) applies when “the court finds that the
questions of law or fact common to class members predominate
over any questions affecting only individual members, and
that a class action is superior to other available methods
for fairly and efficiently adjudicating the
controversy.” Rule 23(b)(3) class actions are designed
to cover cases “in which a class action would achieve
economies of time, effort, and expense, and promote
uniformity of decision as to persons similarly situated,
without sacrificing procedural fairness or bringing about
other undesirable results.” Suchanek v. Sturm
Foods, Inc., 764 F.3d 750, 759 (7th Cir. 2014) (quoting
Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 615
(1997) (alteration omitted)). The (b)(3)
“opt-out” class facilitates the vindication of
“the rights of groups of people who individually would
be without effective strength to bring their opponents into
court at all.” Id. (citing Amchem Prods.,
Inc., 521 U.S. at 617 (citation omitted)).

“Failure
to meet any of the Rule's requirements precludes class
certification.” Arreola v. Godinez, 546 F.3d
788, 794 (7th Cir. 2008). The Plaintiff, as the party seeking
class certification, assumes the burden of demonstrating that
certification is appropriate. Trotter v. Klincar,
748 F.2d 1177, 1184 (7th Cir. 1984); Wal-Mart, 564
U.S. at 350 (“A party seeking class certification must
affirmatively demonstrate his compliance with the Rule-that
is, he must be prepared to prove that there are in
fact sufficiently numerous parties, common questions of
law or fact, etc.”) (emphasis in original).

A
district court has broad discretion to determine whether
certification of a class action lawsuit is appropriate.
Arreola, 546 F.3d at 794. The United States Supreme
Court has made clear, however, that the district court is to
perform a “rigorous analysis” to determine that
the prerequisites of Rule 23 are satisfied when a class is to
be certified because actual, not presumed, conformance with
Rule 23(a) remains indispensable. Wal-Mart, 564 U.S.
at 350-51 (citing Gen. Tel. Co. of Sw. v. Falcon,
457 U.S. 147, 160-61 (1982)). Frequently, that
“rigorous analysis” will entail some overlap with
the merits of the plaintiff's underlying claim, and this
cannot be helped. Id. (noting that sometimes
Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177
(1974) is mistakenly cited for the proposition that the
merits of the claims for relief may not be considered in
adjudicating the motion for class certification, and
clarifying that such a proposition is “the purest
dictum and is contradicted by other cases”). However,
“[i]n conducting this analysis, the court should not
turn the class certification proceedings into a dress
rehearsal for the trial on the merits.” Messner v.
Northshore Univ. Healthsys., 669 F.3d 802, 811 (7th Cir.
2012). But “[i]f there are material factual disputes,
the court must ‘receive evidence . . . and resolve the
disputes before deciding whether to certify the
class.'” Id. (citation omitted).

A.
Nature of the Class Claim

The
WARN Act requires that certain employers provide sixty
days' notice to employees before engaging in a plant
closing[1] or mass layoff[2] at a single site of
employment, as those terms are defined by the statute. 29
U.S.C. §§ 2101(a), 2102(a). If an employer fails to
give notice as required under the WARN Act, a person seeking
to enforce such liability has the right to sue the employer
for back pay and benefits. Id. at § 2104.

Grimes
asserts a WARN Act claim against three distinct corporate
entities that are named as Defendants. Defendants admit that
Grimes was employed by Evergreen RV (whose principal place of
business was the County Road Facility) [DE 14; DE 21], and
Grimes' declaration indicates that this facility was his
place of employment [DE 38], even though he worked remotely
from North Carolina [DE 39-1]. Defendants also admit that KR
Enterprises and JMA each have ownership interests in
Evergreen RV [DE 14; DE 21]. Thus, under a “single
employer” theory, Grimes blames all three
Defendants[3] for terminating him and the other 270
employees by permanently closing the two Evergreen RV
facilities in June 2016, without adequate notice.

One of
the arguments made by Defendants in opposing class
certification, is that the proposed class action constitutes
an improper “fail safe” class because its members
can only be ascertained after the Court renders a
decision on the merits of the “single employer”
theory[4] [DE 39 at 9-10]. However, the Court finds
this argument unpersuasive.

Evergreen
RV's liability under the WARN Act will come down to
questions of whether it was required to provide notice under
the Act to employees at either or both facilities, and if so,
whether it provided such notice or had a valid defense
excusing it from doing so. Whether or not KR Enterprises and
JMA will also be held liable as “employers, ”
see 29 U.S.C. § 2101(a)(1) (defining an
employer to mean “any business enterprise”), will
depend in great part on the relationship between the entities
and their respective roles in making employment decisions
affecting Evergreen RV employees, including the decision to
close the two facilities, see 20 C.F.R. §
639.3(a). Castro v. Chicago Hous. Auth., 360 F.3d
721, 729 (7th Cir. 2004) (applying the United States
Department of Labor's interpretation of “business
enterprise” under 20 C.F.R. § 639.3); Young v.
Fortis Plastics, LLC, 294 F.R.D. 128, 133 (N.D. Ind.
2013), modified in part sub nom. Lace v. Fortis Plastics
LLC, No. 3:12-CV-363 JD, 2015 WL 1383806 (N.D. Ind. Mar.
24, 2015) (listing cases applying the DOL factors to
determine the potential liability under the WARN Act to
companies closely affiliated with the plaintiff's direct
employer).

Thus,
there appears to be no dispute that at least one of the named
Defendants- Evergreen RV-employed Grimes and the proposed
class members, consisting of approximately 270 people that
worked at its two Middlebury facilities. And the outstanding
question of whether or not each of the Defendant entities
constitutes an employer covered by the WARN Act, 29 U.S.C.
§ 2101(a)(1), does not necessarily bar class
certification; rather, it presents a common question of law
and fact that will affect the putative class. See, e.g.,
May v. Blackhawk Mining, LLC, 319 F.R.D. 233, 237 (E.D.
Ky. 2017). In addition, the class can easily be defined by
referencing the two facilities where the employees worked at
or reported to, as opposed to referencing the named
Defendants as their employers. See Young, 294 F.R.D.
at 139; Lace v. Fortis Plastics, LLC, 295 F.R.D.
192, 206 (N.D. Ind. 2013).

In sum,
to prevail in this case, the fired Evergreen RV employees
must establish that a Defendant constitutes an employer
covered by the WARN Act, 29 U.S.C. § 2101(a)(1), that a
plant closing or mass layoff occurred, § 2101(a)(2)-(3),
and that the required notice was not provided to the
employees, § 2102(a). The Court would note that the WARN
Act itself indicates that class treatment may be appropriate
in this type of litigation, which provides that a person may
sue on behalf of himself and “for other persons
similarly situated.” § 2104(a)(5).

B.
Class Certification

Having
considered the nature of the class claim, the Court now turns
to Rule 23(a)'s four requirements: numerosity,
commonality, typicality, and adequacy of representation.
Here, Grimes initially sought to certify the following class:

Plaintiff and all former employees of Defendants: (i) who
worked at or reported to one of Defendants' facilities,
(ii) who were terminated from employment on or about June 8,
2016, within 30 days of that date, or in reasonable
anticipation of or as the foreseeable consequence of the mass
layoffs or plant closings ordered by Defendants on or about
June 8, 2016, (iii) who are “affected employees”
within the meaning of 29 U.S.C. § 2101(a)(5) and (iv),
who have not filed a timely request to opt-out of the class.

[DE
30-1 at 7].

In
response, Defendants argue that the proposed class too
vaguely identifies the facilities at issue, and
inappropriately relies on the subjective intent (or state of
mind) of the employer [DE 39]. In support of its position,
the defense references the classes that were re-defined and
certified by this Court in Lace and Young.

In
reply, Grimes' counsel agrees that the class definition
should be tailored similar to the Lace and
Young classes, to read as follows:

Any and all persons who worked at or reported to a facility
located at 10758 County Road 2, Middlebury, Indiana 46540 or
51700 Lovejoy Drive, Middlebury, Indiana 46540, within sixty
days prior to the closing of those facilities.

[DE
41].

The
Court agrees that use of this class definition (hereinafter
“the proposed class”)

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;eliminates
the concerns raised by Defendants. Moreover, by identifying
the class of people to whom notice would have been required
under the WARN Act, the definition captures those potentially
harmed, while providing a presently identifiable class of
individuals for notice purposes. See Messner, 669
F.3d at 826 n.15 (“In circumstances such as these,
involving minor overbreadth problems that do not call into
question the validity of the class as a whole, the better
course is not to deny class certification entirely but to
amend the class definition as needed to correct for the
...

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